Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I have some questions to the government in relation to the bill. Obviously I outlined the opposition of the Greens to this piece of legislation in my contribution to the second reading debate. I ask the minister how the government justifies the breach of the separation of powers in that this legislation is being introduced to change the current act while this question is before the courts in Victoria.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The question is in error. This is a general power to undertake this act. There is no breach of the separation.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The question for the government in relation to these issues is, I believe, a constitutional one. During the Senate inquiry into this piece of legislation a number of individuals before the committee raised the issue of bringing forward further litigation if indeed this legislation passed. Has the government looked at this possibility? If so, what type of resources would need to be spent on any further litigation as a result of this legislation passing?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There are two things. Firstly, it would not be appropriate to discuss cases currently before the courts. Secondly, in relation to matters that may be sought into the future, it would be a hypothetical question. Obviously people are able to bring challenges to legislation, depending on the nature of the facts and circumstances as the cases arise.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Is it therefore the case that this legislation has no relationship whatever to matters before the Australian courts or to the recent High Court decision?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The reason these amendments are necessary is that the words 'no unlawful right to come to Australia' form part of the elements of the people-smuggling offences in section 233A and 233C of the Migration Act 1958 that are not currently defined. The amendments in the bill are necessary to clarify beyond doubt the existing understanding of the laws. The amendments will also ensure that convictions for people-smuggling offences that have already been made, as well as prosecutions underway, are not invalidated.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Is it not the case that a parliament, particularly ministers—who evolve laws for the good running of the country—have to have the foresight to anticipate circumstances so that the prosecution and practice of the law can proceed? But in this situation the government, being found by the High Court not to be able to prosecute certain persons being held on people-smuggling charges, has decided to retrospectively apply a law that may well prove them to be guilty—not in relation to a law that stood when they were arrested but a law that, consequent to cases dealing with their proper judicial handling, has been altered by the passage of the legislation we now have before us in the Senate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The short answer is no. The law is as it currently stands. There is no court ruling that offends the provision. As I indicated, this is a matter that, regardless of the outcome, provides for the need to clarify beyond doubt the existing understanding of the laws.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Let me be direct. I asked the minister whether this law and this interpretation that is now being presented to the Senate—which did not exist before that—has retrospective application to existing cases before the Australian courts.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The amendments would apply retrospectively from December 1999, when the words 'lawful right to come to Australia' were first inserted into the people-smuggling offences in the Migration Act. Retrospective application is necessary to avoid uncertainty about the validity of previous convictions and maintain current prosecutions.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

It took some time, but there we have it. Senator Hanson-Young is right. What we are dealing with here is a parliament—at the behest of the government, which is prosecuting individuals held in Australian jails—passing a law so that that case can be altered in favour of the government and against the people who are under charges. As Senator Hanson-Young put it so clearly during the second reading debate, this is outrageous. It is appalling. We are a country that believes in the rule of law. But here we effectively have the government saying: 'Our case before the courts is not strong enough. We want to go to the parliament and get it strengthened to have retrospective application.' When you are dealing with the rights of people to be treated properly before the law, that is outrageous. I am surprised that we have people on both sides of this parliament with legal training who are supporting this legislation and that it was not stopped in the House of Representatives. Sure, let the government, in the wake of a High Court decision, have an amendment to the law which applies in future cases so that people tempted to break a law of the Commonwealth of Australia know there is a new law there. But to retrospectively apply a law like this, which effectively is going to mean that people who are unjailable under existing law may be jailed is very close to a perversion of justice. It certainly goes against natural fairness and it breaches the principle that people should be treated as the law stands. What would happen, might we ask, if defendants were able to come into this place and persuade the parliament that the law should be changed so that they had a better go? There would be pandemonium. But because it is the government doing it the opposition thinks that is okay. I join Senator Hanson-Young in saying to the opposition that there is a very, very important prudential matter being subverted here; that is, you do not have one side or the other of a series of court matters being able to alter the rules after the prosecution gets underway and the defence gets underway. It is, at best, very poor behaviour but, at worst—because it is a serious matter—it breaches the principle of a fair go and natural justice.

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

After listening to that contribution just then from Senator Brown and the one earlier from Senator Hanson-Young, I am distressed by the level of hypocrisy that is being displayed in this chamber. In respect of this bill, it is a serious issue—and we know that—but this chamber has been debating serious bills all week—or, in fact, I should say it has not been debating serious bills because we have not been allowed to even have a word of discussion about them! Why is that? Because the Greens have continually supported the guillotine or the gagging of debate on important bills.

I raise this because I want the people of Australia to know, and I want this chamber to know, about the hypocritical behaviour that is being displayed by the Greens. Earlier today, when a genuine inquiry was made as to how long this committee stage on this bill was going to take, the answer from Senator Hanson-Young was 'until you gag us'. What a shameful display by these appendages to the government who have stifled debate all week on important bills and yet they are insisting upon making spurious points off the minister until they are gagged. This is their attempt to reclaim the high moral ground from which they fell many, many moons ago. The people of Australia need to know this and the government needs to know this as well, that we have been played off a break by a manipulative and deceptive group of people who are seeking to twist and contort things, in their disgraceful application of double standards, in a manner by which to make a complete mockery of democracy in this chamber.

I would say to you, Mr Chairman, and to my colleagues here that we have to make a decision about what is applicable in these circumstances. We have a circumstance whereby a party has stopped us from having debate next week in order to suit themselves, we have a circumstance where a party have gagged debate on important bills because they wanted to get out of here to go to Durban and now we have a circumstance where a genuine filibuster is taking place. There is no merit to this, and I know there is no merit to it because I was told earlier that they are going to stay here until we gag them. That is a filibuster. It does not contribute to the debate. It is once again a demonstration of the rank hypocrisy that is so evident on so many occasions by the party to my left. It is a travesty. We expect others to abide by the rules.

I do not like seeing the gagging of debate—I have to tell you that—but there are other issues about time management which we have to work through. I said earlier today that we had three sitting days next week to explore this, which the Greens did not want because they wanted to take their first-class flights to Durban—and that is the guts of it. It interfered with their travel plans, so they wanted to stop the parliament from having its scheduled days, and now, after a week of being exposed to the despicable actions that have taken place at their behest and their insistence, we now have their attempt to claim the high moral ground by making others gag them. Let me tell you that, as unfortunate as I find it, it is time for these people to be exposed for what they are. It is time to let the Australian people, many of whom are interested in these proceedings, know, so that they can find this out, that the party which purports to represent the interests of parts of Australia and which purports to represent the interests of the environment is only interested in themselves. It is a party that has self-interest at its very heart and after a week of stopping others from speaking they now want to talk to their heart's content.

This is a travesty. This offers an exposure that needs great ventilation right across this great land because the Greens are now manipulating our democracy and they are silently stifling dissent—anything that they do not agree with. Quite frankly, I agree with this bill. I think this bill is a very important bill that needs to be passed as soon as possible so that the government can get on with their actions. We have unequivocally given our endorsement to this bill. So that is the point that I want to raise: it is the will of this chamber to pass this bill and there is no-one more open to free speech than me for other people to explore the issues, but not when they are taking advantage of the Australian people.

The Greens are a party that apply to themselves rules that are different from the rules that they apply to other people. They apply to themselves standards that are different from those that they apply to others. To her credit, I will say that Senator Rhiannon does not want corporate fundraising, but the rest of the Greens Party apply different rules as to fundraising perspectives than for themselves. We know that and we know that Senator Bob Brown has already been referred to Privileges, but we also know that he sought to raise money to alleviate some legal bills under some sort of spurious circumstances, but of course that goes above—

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Mr Chairman, I rise on a point of order. The comment that I sought to raise money under spurious circumstances is similar to the earlier comments about fraudulence and it should be withdrawn.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Bernardi, it would assist if you withdrew that remark.

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

I withdraw that remark, Mr Chairman. But for the sake of the record, let me demonstrate that there was a suggestion that legal bills needed to be paid by Senator Brown and that there was a threat of bankruptcy attached if they were not paid. Now, according to my records—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Mr Chairman, I rise on a point of order. I do not think he can accept the rule of the chair and then decide to state it another way. I did not rise before, but it is also inappropriate to mention the issue around privilege. Privilege is a very important principle in this place. I would remind senators that people do have a presumption of innocence when these issues are raised. It applies to all of us in this place. And it is appropriate that the procedures in this place are followed. They have been followed, and we as senators should be cognisant of that and not say anything further until the Privileges Committee has decided what they want to do and we can read the Privileges Committee report.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

On the point of order, Mr Chairman, I support Senator Ludwig's contention on the matter of privilege, but, in relation to his other point of order, the first one he made, Senator Bernardi withdrew the adjectives and he is now relating a set of facts. You can hardly say that that is contrary to your ruling and you can hardly say that that is casting aspersions on Senator Bob Brown. He is simply relating—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Thank you, Senator Macdonald. There is no further point of order. Senator Ludwig has made some important remarks in relation to privileges, and I would ask all senators to consider those remarks. Senator Bernardi, could I ask that you remember the question before the chair.

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

Indeed, I do. I thank you for that suggestion. As a point of clarification, to you, Mr Chairman, the matter I was talking about and the facts attached to that are not a product of privileges; they are not before a privileges inquiry now. It goes towards Senator Bob Brown's fundraising to pay his legal bills. He raised well in excess of that, and by many anonymous donations, and yet he rails against honest donations—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Bernardi, could I suggest that you come back to the question before the chair.

Cory Bernardi (SA, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition) Share this | Link to this | Hansard source

and it brings me back to the question, which is one of hypocrisy. All week we have had the gagging of debate on a number of contentious and important bills and yet, despite the importance of that earlier debate, we now know from the Greens that we are going to have a filibuster, because I was told as much. I was told that they were going to stay there and keep talking until they had a filibuster. I want the Australian people to know about the true nature of the Greens party. They are very dangerous. They are dangerous to our democracy, because they want to stop us from debating things in this chamber unless it suits them. I say that is the wrong approach.

We have already had three days withdrawn because of the Greens, and they do not want to wear the consequences of it. So I would say to you, Mr Chairman, that this bill should be passed as soon as possible, and I would like the minister to facilitate that as early as he possibly can, because it is very important that this is enacted so that the Australian border protection system can be stronger than it currently is.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I have some questions for the minister in relation to the issues that I raised in my speech in the second reading about the mandatory minimum sentences. We know that this is the primary reason that the Victorian court case has been brought forward; because of the complications that that is creating—not catching the kingpins and the big fish but, instead, using the small fry, the Indonesian fishermen who have been tricked onto these boats, as the scapegoats for the government's 'smashing the people smugglers' business model' approach.

What is the government going to do in relation to these genuine concerns raised around the mandatory minimum sentences? It was acknowledged in the Senate inquiry that this was a problem. This bill is being put through the parliament today, with the support of the opposition—this is one issue where 'Dr No' says yes and lines up shoulder to shoulder with the government. What is the government going to do in relation to the mandatory sentencing issues raised sincerely by legal experts as to why they have even brought this case forward in the first place?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I indicated earlier, the reason for bringing this legislation forward was to put beyond doubt the legal position. I will not reiterate that. I said it earlier. In terms of the offences, they apply equally to everyone.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I will ask the question again: is the government going to consider amendments to the mandatory sentencing regime?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I have no current indication.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Here we have it. The government is not serious about this issue. They are not doing anything that actually addresses this issue, because the whole point of the case before the Victorian courts is the farce of the mandatory sentencing regime. Until the government can see that and moves to address it, these issues are not going to go away. This bill does nothing to address those issues. This bill does nothing to deter people smuggling. This is all so that the government can get out of here today and say, 'We did something to smash the people-smuggling business model', when you have actually done nothing at all.

What about the children who are being held in Australian jails? What is the minister and the government doing to address that issue? Again, we know that these young people are being held in Australian detention facilities, Australian jails, despite the facts that they are not 18 years old and there is no conclusive evidence that the government is able to even charge them. At the end of the day, the courts are going to find that they are not adults and send them home. How much money out of the public purse is being spent because the government will not tackle these issues properly because they are all about spin, they are all about smokescreens, they are all about slogans and they are nothing about substance? What is the minister doing to address the issue of children being detained in Australian jails?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

With respect, Senator Hanson-Young, you are incorrect. It is the policy that we do not prosecute minors. We return them as soon as possible.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to give the minister an opportunity again to put on the record exactly what evidence the government has that the current legislation has indeed deterred anybody from participating in people smuggling.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Can I put it simply in this way: having an effective offences regime is a deterrent.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I would like to make it very clear for the sake of Hansard, and to anybody listening, that the government have consistently failed to show that there is anything in the current legislation that has acted as a deterrent. This bill is named the Deterring People Smuggling Bill, yet the government cannot provide any evidence that the current act and criminal charges within the Migration Act have deterred anybody, because the figures have not gone down since 2010. In fact they have increased. No-one has been deterred under this legislation because it does not target the right people. The people it targets are the scapegoats for this government's getting tough on people smugglers. It is an absolute farce. The government want the Australian people to believe they are doing something, but they are doing absolutely nothing except punishing vulnerable, impoverished Indonesian fishermen and children. Where is the Labor Party's moral compass on this issue?

The reason the opposition are voting for this legislation is that this is the type of legislation Tony Abbott is proud of. That is why they are voting for it; not because they are doing the right thing and not because they are doing anything that tackles the issue. If Tony Abbott had thought of it, he would have.

I can see that I am not going to get anywhere with getting responses to the genuine questions I have. The whole point of this legislation is not to deliver any substance in relation to the issues being dealt with—and why the court case in Victoria is currently happening; it is all about scuttling the case. It absolutely is a breach of the separation of powers. It will open up the case for further litigation at the cost of Australian taxpayers, and it is all for show and spin. It is so that this government can go home tonight and say, 'Yep, we fought off at least one court case this year.'

I do not have any other questions for the minister because I do not think he has any answers. The government have no idea what they were doing with this bill, except pushing it through so that they do not have to fight their case in the courts. It is an absolute disgrace to be abusing our court system in that way.

Michael Ronaldson (Victoria, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Link to this | Hansard source

I would like to point out on the public record that there was no response from Senator Hanson-Young in relation to the matters raised by Senator Bernardi. Clearly those comments were made.

Can the minister confirm that the total number of people arriving since August 2008 is 12,848; that the total number of boats since August 2008 is 250; that the total number of arrivals since polling day at the last election is 95 boats and 5,499 people; and that the total number of arrivals since the Prime Minister knifed the foreign minister, on 24 June last year, is 109 boats and 6,296 people?

Can the minister also confirm that in the year 2002-03 there were no boats; in 2003-04 there were 82 people and one boat; in 2004-05 there were no arrivals; in 2005-06 there were 61 arrivals on eight boats; in 2006-07 there were 133 on four boats; and in 2007-08 there were 25 people on three boats?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

In answer to the first part of your question, I generally would indicate that I would not take your figures as given. I would seek to ensure that I had my own figures. Seeing that you already seem to have the figures, though, I will still maintain that position and take it on notice to confirm whether those figures are in fact correct.

In relation to the second part of your question I simply reject it. This government has addressed people smuggling comprehensively. It is a failure on your part that you have not sought to support the legislation we have put forward.

Bill agreed to.

Bill reported without amendments; report adopted.